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Robertson v. Court of Common Pleas, Philadelphia County

United States District Court, Third Circuit

September 3, 2013



ROBERT F. KELLY, Senior District Judge.

Presently before this Court is Petitioner, Malik Robertson's ("Petitioner") Petition for Writ of Habeas Corpus pursuant to 28 U.S.C. § 2241, the Response of the Philadelphia District Attorney's Office ("Respondent"), and the Reply of Petitioner. For the reasons set forth below, the Petition is denied.


Petitioner is currently on bail awaiting retrial in a case in which he was charged with several criminal offenses that arose out of a home invasion and shooting on June 24, 2011. The matter is pending in the Court of Common Pleas of Philadelphia County (Commonwealth v. Malik Robertson, CP-51-CR-0010597-2011).

Petitioner is charged with Attempted Murder, Conspiracy, Aggravated Assault, and weapons' charges stemming from an incident on the above date in which he and two companions allegedly entered a house occupied by sleeping people in South Philadelphia. Respondent asserts the following facts. Petitioner and his co-conspirators entered the premises where they shot Lekirr Brown in the eye, stomach, and leg as he lay in bed asleep. (Resp. at 2.) A blue car was seen speeding off immediately after the shooting. (Id.) Police in the area were notified immediately and encountered a blue car parked in the middle of a street one block from the shooting. (Id.) Petitioner was arrested running away from the car, and within minutes he was identified by several witnesses as one of the three men running out of the house after the shooting. (Id.) Police seized the vehicle and subsequent to obtaining a warrant, searched it twice. (Id.) The first time they found, among other things, latex gloves, and Petitioner's driver's license. (Id.) However, the police missed two hidden guns. (Id.) A few days later, at the impound lot, they searched again and found two hidden guns. (Id) The police matched one of these guns to a bullet pulled from the victim's body. (Id.)

Respondent asserts that on October 6, 2011, before trial, the Commonwealth turned over to Petitioner's counsel a discovery packet which included a search warrant for the car, and items found in the car including Petitioner's driver's license, a black shirt, and several cell phones. (Id. at 3; Ex. C.) Respondent states that "although the warrant return photocopy given to defense counsel was part of the discovery packet contained handwriting in the Property Seized' section, it was illegible, " and "[c]ounsel did not ask for a clearer copy or otherwise inquire what items police found in the car." (Id. at 3.)

A jury trial commenced on May 10, 2012, presided over by the Honorable Barbara A. McDermott.[1] On Friday, May 11, 2012, an evidentiary issue arose that caused the Court to doubt whether trial could continue, and the "Court alerted counsel and asked that they come prepared the next Monday to discuss the issue and discuss any possible remedies short of a declaration of a mistrial." See Commonwealth v. Robertson, CP-51-CR-0010597-2011, 84 EDM 2012, at 1. On Monday, May 14, 2012, after conferring with counsel, Judge McDermott determined that "it was manifestly necessary to declare a mistrial due to [defense] counsel's discovery and trial preparation failures and the severe extent to which they hampered the defense." (Id.)

As will be discussed, infra, Judge McDermott issued a written decision on September 12, 2012, and explaining that on May 11, 2012, during the trial, Philadelphia Police Officer Flade, a crime unit officer, was scheduled to testify. (Id. at 2.) Officer Flade, one of the final Commonwealth witnesses, brought with him several color photographs that he had taken of the trunk of the car in question where the two handguns were found. (Id.) The photos also depicted Petitioner's driver's license. (Id.) Judge McDermott stated that neither the Commonwealth nor the defense had been aware of precisely what these photos depicted, but they were consistent with the search warrant, which had listed the items found in the vehicle, and had been provided in the discovery package provided by the Commonwealth. (Id.) Respondent asserts that the police had not previously given these photos to the prosecution and the photos were not mentioned in any police paperwork. (Resp. at 10.) Respondent further states that the Commonwealth immediately turned over the photos to defense counsel, who objected to them, and claimed that the non-disclosure of the photos constituted a violation of Brady v. Maryland , 373 U.S. 83, 87 (1963) ("the suppression by the prosecution of evidence favorable to the accused upon request violates due process where the evidence is material either to guilt or to punishment, irrespective of the good faith or bad faith of the prosecution."), despite the fact that counsel failed to file any pretrial discovery request. (Id.) Judge McDermott wrote that during sidebar, it became apparent that a copy of the search warrant that was provided in discovery was not legible to the defense, but the defense had not requested that a legible copy be provided despite the contents of the trunk being of obvious importance to the defense's case. See Robertson, 84 EDM 2012 at 3.

As noted, on May 14, 2012, in a discussion with counsel, Judge McDermott expressed the Court's concern that a mistrial was necessary because defense counsel's ineffectiveness had already necessitated a new trial in the almost certain event of a conviction. Id . During this discussion, Judge McDermott stated that the Commonwealth agreed that a mistrial was necessary, and the defense "made absolutely no argument as to alternative remedies, and agreed with the Court's assessment of the facts." Id. at 4. Judge McDermott then found that "manifest necessity" had been shown and sua sponte declared a mistrial. Id.

On June 19, 2012, defense counsel filed a motion to dismiss with the Philadelphia Court of Common Pleas on double jeopardy grounds. Judge McDermott denied the motion on July 20, 2012, finding that the motion was frivolous, and rendered her findings in a written decision on September 12, 2012.[2] Id. at 1. In her decision, Judge McDermott noted that recently in Commonwealth v. Orie , 22 A.3d 1021 (Pa. 2011), the Pennsylvania Supreme Court clarified the procedures for seeking a stay pending retrial after a trial court denies a double jeopardy motion following a mistrial, and that she followed this procedure.[3] The Superior Court declined to review Judge McDermott's decision by order dated October 23, 2012. (Resp., Ex. Q at 14a.) On November 26, 2012, Petitioner filed a Petition for Allowance of Appeal in the Supreme Court of Pennsylvania. That Court denied the Petition by order dated March 20, 2013. (Resp., Ex. R.)

On May 14, 2013, Petitioner filed the instant habeas petition under 28 U.S.C. § 2241, [4] seeking to bar the state retrial on double jeopardy grounds.[5] (Doc. No. 1.) Petitioner also filed a Motion to stay state court proceedings under 28 U.S.C. § 2251.[6] Respondent filed a Response on July 7, 2013, and Petitioner filed a Reply to the Response on August 7, 2013. (Doc. Nos. 7, 9.)


A. Section 2241 or Section 2254 Standard of Review

Petitioner and Respondent first disagree on whether § 2241 or § 2254 is the proper avenue by which to challenge pretrial detention, including when such challenges are based on double jeopardy grounds. "For state prisoners, federal habeas corpus is substantially a post-conviction remedy." Moore v. DeYoung , 515 F.2d 437, 448 (3d Cir.1975) (citing 28 U.S.C. § 2254; Peyton v. Rowe , 391 U.S. 54 (1967)). "Nevertheless, jurisdiction to issue the writ exists ...

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